On Tuesday, the FTC initiated a self-proclaimed “dietary sweep” aimed at combating deceptive advertising within the dietary, hair growth, opiate addiction relief, and cognitive enhancement supplement industries. As part of their newfound crusade, the Commission released a case chart detailing the fourteen different FTC suits related to deceptive claims made in support of health-related products including, for instance, the Green Coffee Bean, W8-B-Gone, CITRI-SLIM 4, Elimidrol, and Procera AVH. Although the initiative has targeted a variety of products, ranging from hair growth gels to memory enhancement pills, the biggest focus seems to be on online dietary weight-loss supplements.
In fact, just yesterday, the FTC sent out a harshly worded warning letter to twenty companies in the weight-loss supplement space. The letter emphasizes the importance of using realistic product descriptions and citing scientific studies in support of any product efficacy claims. Specifically, such studies must be randomized, double-blind, and placebo-controlled, and conducted by researchers who are qualified by training and experience. See, e.g., FTC v. Nat’l Urological Group, Inc., 645 F. Supp. 2d 1167, 1190, 1202 (N.D. Ga. 2008), aff’d, 356 Fed. Appx. 358 (11th Cir. 2009); FTC v. SlimAmerica, Inc., 77 F. Supp. 2d 1263, 1274 (S.D. Fla. 1999); Schering Corp., 118 F.T.C. 1030, 1080, 1115-16 (1991). The letter further cautions that consumer testimonials are insufficient evidence to support a weight-loss claim, and instructs affiliate marketers on how to properly implement non-deceptive testimonials.
This recent surge in FTC enforcement activity and fixation on health-related products may stem from the Commission’s membership with the National Prevention Council, which provides coordination and leadership at the federal level regarding prevention, wellness, and health promotion practices. The two entities appear to be teaming up to crack down on deceptive advertising that has the potential to affect consumers’ health. While such a dietary witch-hunt has seemingly come out of the blue, the effort makes sense from a consumer protection standpoint. This is because consumers of health-related supplements risk serious bodily injury or even death from improper product usage promulgated by deceptive ads or improper labeling because they are ingesting such products or placing them in direct contact with their skin. This is in stark contrast to the lesser degree of harm likely to result from, say, a deceptive video game advertisement.
This latest FTC crackdown in the health products industry should serve as a wake up call to affiliate marketers within this space, prompting the implementation of proactive measures. If you have received one of the above-mentioned warning letters or are worried that your marketing compliance measures may be out of date, now is the time to retain counsel.
Gordon Law Group prides itself in staying current with the perpetually evolving regulatory landscape of affiliate marketing and can help you to remain one step ahead of enforcement measures like todays.